Wednesday, October 14, 2015

In the shock of the aftermath of the catastrophic attacks of September 11, 2001 the New York Police Department, like others, realized that they were ignorant of the threat until the attacks. Like others, they resolved to say never again. A program of surveillance of Muslim communities, mosques, businesses and organizations. The NYPD’s reach extended to New Jersey. Their objective was to prevent another surprise attack by developing informants in every Muslim mosque, store, or organization allege the plaintiffs in Hassan v. City of New York.The Muslim clerics, students, employers, and others who filed suit alleged that NYPD surveillance was prompted by mere “affiliation” with a Muslim mosque, school, or business. The plaintiffs claim the program - endorsed and defended by former Mayor Michael Bloomberg - and even to this day by the City - is stigmatizing, and deters people from associating with Muslim organizations and enterprises. The plaintiffs allege that using faith rather than evidence as a trigger for suspicion and surveillance is an impermissible stereotype, violating the equal protection clause of the 14th Amendment.District Judge William Martini struck the complaint, finding that the plaintiffs lacked standing to sue. They had alleged no injury sufficient to give them the stake in the controversy mandated by the case and controversy clause of the federal constitution, as construed. But the Third Circuit, crediting as true the allegations of the Muslim plaintiffs, disagreed. Subjecting people on the basis of their faith, not their conduct, to police surveillance is akin to a “dignitary tort”. It is the discrimination on the basis of faith affiliation alone that is the “affront”, the “claimed discrimination itself [is] the primary injury”.The City responds that the police mean no harm, that they are motivated by the desire to protect the citizenry from threats like that inflicted that terrible September day in 2001. But, as the unanimous panel finds, discrimination on the basis of religion is “inherently invidious”, regardless of the sincerity or purpose of the actors. The courts, the panel notes are not “instruments of police plicy”, but rather guardians of the Constitution which forbids the inference that “examples of individual disloyalty prove group disloyalty”. We have been down that sad road before the court observes: “Jewish American during the Red Scare, African Americans during the Civil Rights Movement, and Japanese Americans during World War II”.The court does not doubt the NYPD’s protective intentions. But if the allegations are proven, they will be an illustration that once again we have faced a not uncommon mistake: that group identity is a “permissible proxy for criminality”, and that pervasive surveillance of such groups is can be carried out. The Third Circuit properly vacated the dismissal and allowed the action to proceed. - gwc